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Justinian I · The Digest of Justinian §45.1.105.pr

Creditor Default and Discharge in Alternative Obligations

Passage 7452 of 9271 · Latin

Summary

In an alternative obligation, if the slave to be given dies while the creditor is in default, the debtor is immediately released from liability, and the creditor cannot bring an action on the stipulation according to Sabinus.

[IDEM libro secundo epistularum. ]
[THE SAME, book two of Letters.] I stipulated that the slave Dama or Eros be given to me.
§45.1.105.prStipulatus sum Damam aut Erotem seruum dari: cum Damam dares, ego quo minus acciperem, in mora fui: mortuus est Dama: an putes me ex stipulatu actionem habere? respondit: secundum Massurii Sabini opinionem puto te ex stipulatu agere non posse: nam is recte existimabat, si per debitorem mora non esset, quo minus id quod debebat solueret, continuo eum debito liberari.
When you were offering to give Dama, I was in delay in receiving him. Dama died. Do you think that I have an action on the stipulation? He answered: According to the opinion of Masurius Sabinus, I think you cannot bring an action on the stipulation; for he rightly thought that if there were no delay on the part of the debtor in paying what he owed, he was immediately released from the debt.

Notes

  1. §45.1.105.prquo minus acciperem — The conjunction `quo minus` introduces a clause after expressions of hindering or delaying (here `in mora fui`, "I was in delay"), meaning "from receiving" or "so as not to receive," indicating default on the part of the creditor.
  2. §45.1.105.prquo minus id quod debebat solueret — Similar to the previous `quo minus`, this clause depends on the noun `mora` (delay), meaning literally "delay [preventing] him from paying what he owed." Combined with `per debitorem` ("on the part of the debtor"), it refers to default attributable to the debtor.
  3. §45.1.105.prcontinuo eum debito liberari — An accusative with infinitive (ACI) construction governed by the main verb `existimabat` ("thought"). The subject accusative `eum` refers to the debtor (`debitorem`), and `liberari` is the present passive infinitive.

Cite this passage

Justinian I, The Digest of Justinian §45.1.105.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:45.1.105.pr

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